Judicial Review Granted of Decision to Deport Individual who remained in the State under a Fake Identity on grounds of Preserving his Right to Family Life

The
applicants in these judicial review proceedings sought to challenge a decision
by the Minster to refuse to revoke a deportation order made in respect of the
fourth named applicant, Davit Arabuli.

The
principal ground for this application is that s 3 of the Immigration Act 1999
is unconstitutional as it imposes a lifelong ban on a person subject to a
deportation order, which amounts to disproportionate interference with the
applicant's right to family life under article 41 of the Constitution. The
constitutionality of s 3 has never been challenged before. The applicants also
sought a declaration of incompatibility pursuant to s 5(2) of the European
Convention of Human Rights in that allowing for a deportation order of
indefinite duration violates the applicants right to family life under article
8 of the Convention.

The fourth
named applicant, a Georgian national, entered the state in 2001. Mr Arabuli who
used the alias Datia Toidze, was refused asylum and a deportation order was
issued in respect of him in December 2001. He failed to report to the GNIB in
respect of the order and was classified as an evader. Mr Arabuli managed to
remain present in the state until November 2011. In the meantime Mr Arabuli
began a romantic relationship with first named applicant in 2003. Their first
child was born to them in April 2005 and their second child was born in August
2009. They married in July 2009. Their children are not classified as Irish
citizens.

Mr Arabuli
made a number of applications to revoke his deportation order during this time
but the deportation order was affirmed. In October 2011 the applicant was
arrested and detained in Cloverhill prison. During cross-examination Mr Arabuli
admitted that the name Toidze that he had been consistently using throughout
his time within the state was simply an alias. The applicant was deported in
November 2011.

Under s 3
if a deportation order is made, it must be for an indefinite duration save that
the Minister can revoke the order pursuant to s 3(11) at any time. The real
question is whether the existence of a sanction that is potentially life long
in duration is essential in circumstances where the applicants have real and
substantial ties with the state

The
European Court of Human Rights regards deportation orders of unlimited duration
as raising serious Article 8 issues. The grant of humanitarian leave to Ms
Sivsivadze amounts a tacit acceptance that it would be unfair to expect her to
go back to Georgia. The Minister’s decision acknowledged that implementing the
deportation order would not be in the best interests of the two children, but
failed to expressly weigh it in the balance. The High Court noted previous
decisions in which it was stated that such an order of unlimited duration was
an overly rigorous measure.

Overall the
High Court found that the applicant made out substantial grounds that the
application of a deportation order of potentially indefinite duration would
infringe Article 8 ECHR, especially having regard to the circumstances of this
case.

On the
constitutional question, the court applied the three-pronged test of
proportionality propounded by Costello J in Heaney v Ireland. Firstly,
legislation that provides for the deportation of persons who have abused
immigration laws through deception is connected to important state interests.
Secondly, while the deportation order did impair the Article 41 rights of the
other family members, it is recognised that it is not possible to have
effective control of immigration without the sanction of deportation. The third
limb requires the court to consider whether the effect on rights is
proportionate to the objective. The question is whether the states interests in
effective immigration law requires that a deportation order have indefinite
effect.

The High Court found that the applicants raised
substantial grounds in respect of both the Constitutional and ECHR grounds in
the manner indicated and granted the applicants leave.